Initial comparison of HB6 and SB7

Summary

A full review of the two omnibus election bills is complete. While both Senate Bill 7 and House Bill 6 have commendable provisions, neither contains all desired changes to the election code.

Thankfully, the provisions these bills lack are covered in other bills that will be given hearings and, at the very least, have a high likelihood of passing out of the Senate. Amending one or both bills to achieve a better product is also possible.

Of the two bills, SB7 is superior for a few reasons.

First, SB7 addresses more of the troubling and substantial incursions on the administration of elections in 2020, including infusions of cash from third-party sources (Facebook 2020) to alter election administration, an illegal expansion of curbside voting, and abuse of mail-in balloting.

Second, HB6 (even amended) provides a pathway for the Secretary of State (SoS) to alter the administration of elections. An earlier version of the bill explicitly empowered the SoS to change how elections are run as long as a county sought the alteration. The current version still has this possibility, though it’s not expressly given.

This is unacceptable because it ignores what’s already happening with the SoS issuing waivers to election law (a duty reserved for the state legislature). An SoS that assumes powers it does not have is objectionable and leads to many of the problems we must address with legislation this cycle, namely drive-thru voting, mail-in ballot reforms, clarifying voting hours, etc.

Appointed by the Governor and accountable to no one, the SoS SHOULD NOT be further empowered with more control over any aspect of the election process. To the extent the SoS is granted more oversight, it should be within a hybrid system of checks and balances, preserving local activists’ ability to bring pressure to bear on election administrators and county officials.

SB7 accomplishes this task by allowing the SoS to undertake list maintenance activities when local officials are not promptly removing ineligible voters.

Currently, the SoS is wholly insulated from pressure to perform. The SoS and its employees are not accountable to activists or lawmakers. Grassroots activists have asked the Governor and Attorney General to ensure the SoS is following the law for many years – to no avail. 

While it has been discussed, the position of SoS is unlikely to become an elected official during the 2021 session (HJR 142). If the SoS was accountable to citizens, a more credible case could be made that more powers should be vested. Until it becomes an elected position, we do not support empowering an unaccountable SoS. 

Lawmakers might contemplate triggering the removal of the SoS by impeachment if election laws are not followed, but this too would face long odds of passage in either legislative body.

Power consolidation of a political appointee of the Governor ultimately empowers the Governor. Given the pushback to the overuse of gubernatorial power, election bills ought not to excuse what was rightfully criticized in 2020 or allow for similar actions in the future.

Without enforcement mechanisms, all bills that empower the SoS are just as likely to be ignored by the SoS as they are at the local level.  Somebody must oversee “forcing” compliance.  Failure of the SoS to enroll in ERIC (Electronic Registration Information Center) is a good case in point. In 2015, the 84th Session of the Texas Legislature passed a bill that was signed into law: 

Sec. 18.062.  INTERSTATE VOTER REGISTRATION CROSSCHECK PROGRAM.  (a)  To maintain the statewide voter registration list and prevent duplication of registration in more than one state or jurisdiction, the secretary of state shall cooperate with other states and jurisdictions to develop systems to compare voters, voter history, and voter registration lists to identify voters whose addresses have changed.

(b)  A system developed under this section must comply with the National Voter Registration Act (52 U.S.C. Section 20501 et seq.).

Added by Acts 2015, 84th Leg., R.S., Ch. 473 (S.B. 795), Sec. 1, eff. September 1, 2015.

A series of Abbott-appointed Secretaries of State NEVER complied with this law! 

Neither bill SB 7 nor HB 6 deal comprehensively with thoroughly removing non-citizens from the voter rolls.

Both bills deal substantially with the issues of mail-in ballot harvesting abuses and provide more robust up-front safeguards, including requiring applicants to affirming disability, proving disability, and disclosing assistance.

While it would be ideal for SB7 to contain rigorous processes for finding and removing non-citizens from voter rolls and conducting risk-limiting audits, these are included in other bills that we believe have a high probability of passing. Outside of the aforementioned SoS issue, nothing else in SB7 is objectionable.

Categories

Subtractions, amendments, and additions to Texas law by the language in these bills can be placed into a handful of broad categories. For this comparison document, the categories are as follows:

  • 2020 Hindsight

  • Watchers

  • List Maintenance 

  • Ballot by Mail (BBM) Reforms

  • Process

  • Transparency

  • Fraud Prevention & Enforcement

2020 Hindsight - SB7

Several of the items in SB7 deal with administration issues unique to the 2020 election. These items are badly needed.

SB7 - “Voting may not be conducted earlier than 7 a.m. or later than 7 p.m.”

SB7 - “Polling places must be in a building, not a tent.”

SB7 - Distribution of mail-in ballot applications: Prohibits distribution by the state without prior voter request

SB7 - “The commissioner’s court may not accept a donation described in Subsection (a) of over $1,000 for use in administering elections without the written consent of the secretary of state.”  (We advise striking this section. A $1,000 limit is still too much.)

HB6 - Stops distribution of mail-in ballot applications by public officials

Watchers - Push

Both bills deal extensively with poll watcher rights. There are provisions allowing video recordings by watchers that some will find objectionable. Still, in the election process, recording election process activity (other than the act of lawfully voting) should be allowed.

SB7 - Provides for watchers being able to observe counting meaningfully. They need to see and hear counting activities (i.e., can't be behind glass).

SB7 - Can't restrict, distance, or obstruct a watcher
SB7 - Mandatory cameras monitoring the counting process are excellent.

SB7 - Removes affidavit section prohibiting recording devices on watchers

HB6 - Watcher can only be removed if they are engaged in activity that would constitute a fraud offense

HB6 - Creates a Class B Misdemeanor for obstructing a poll watcher under Sec 33.051 of Texas Election Code

HB6 - Increases watcher protections, adding a Class B misdemeanor creating Sec 33.0015. [Note: This bill doesn’t specify who would enforce this provision, as with other aspects of election code, likely the DA or Attorney General.] (Add note on who enforces)

List Maintenance - SB7

Neither of these bills deals substantively with removing non-citizens from the voter rolls, though SB7 has a hat tip to the need for this, including jury duty self-reporting of non-citizen status. The process for running voter rolls needs to be transparent, and that is a requirement in SB7.

SB7 - Adds language that an affirmative finding of guilt be noted in the case of felons 18 years or older

SB7 - Adds jury service eligibility letters to be sent by the registrar. [Note: This is aimed at removing non-citizens from voter rolls.]

SB7 - Forces registrars to tend voter rolls, the 30-day trigger for SoS to take over, $100 civil penalty for each error corrected by the SoS. [Note: The Attorney General will need to file suit to collect fines under this section of the code]

HB6 - Requires removing deceased voters every month and hastens requirements for removal currently set at ten days. [Note: the first bill took this to one day, the committee substitute amends this up from one day after complaints from election administrators.]

BBM (Ballot by Mail) Reforms - SB7

Again, outside of the disclosure requirement for assistance on mail-in balloting and increased focus on harvesting in HB6, SB7 more thoroughly deals with issues revolving around the use of mail-in balloting.

There are provisions in SB7 related to BBM that are unnecessary but could be useful in the combined efforts to increase trust in elections.

SB7 - Requires an applicant claiming a disability to submit an affirmative statement, "I am physically unable..."

SB7 - Bars distribution of mail-in ballot applications by the state to any voter who has not requested one 

SB7 - If a requested mail-in ballot is not voted or returned, the person who requested the mail-in ballot may only vote provisionally

SB7 - Proof of disability must accompany a mail-in ballot application

SB7 - Ballot by mail electronic tracking - requires SOS to provide an online tool to track an application for ballot by mail and the voted mail-in ballot [Note: this could be abused to harvest, but with the proper technological barriers, this can be overcome]

SB7 - The signature verification committee can compare any available signatures instead of requiring two signatures for comparison.

HB6 – Requires disclosure of assistance in voting on carrier-envelope (chain of custody measure)

Process - SB7

The process issues addressed in SB7 vastly outnumber those contained in HB6. This might be attributable to Hughes’ experience authoring comprehensive election reform bills or being well-positioned and prepared to file such a measure as the Chair of the Senate State Affairs Committee, the committee that typically hears election bills in the Senate.

SB7 - All polling places must have the same approximate number of machines

SB7 - Requires a paper ballot back up

SB7 - Requires the applicant to affirm all information provided on the application  

SB7 - Processing of mail-in ballots separately from in-person votes

SB7 - Expands keeping of spoiled ballots to include DRE voting units

SB7 - Requires that if votes are being cast curbside that anyone accompanying the curbside voter must affirm the voter is unable to enter the polling place, and provide the name, address of the person providing assistance

SB7 - Outlines requirements for an assistance form for mail-in balloting and curbside voting

SB7 - Chain of custody reforms keep a record of all individuals in control of election records until they are delivered

SB7 - Preservation of ballots in a locked room for at least 60 days or until a contest is resolved

SB7 - Electronic records may not be deleted or overwritten during the preservation period [Note: to the extent that machines and thumb drives are in use, they should be saved for a substantial period of time, perhaps 5 years]

SB7 - Voting system ballots may not be arranged in a manner that allows a political party's candidates to be selected in one motion or gesture [Note:  no de facto return to straight-ticket voting]

SB7 - Voter must be allowed to cast a ballot at any time during the electronic process on a machine [Note: currently, a voter must cycle through all offices and referendums on the ballot before hitting submit, this would allow an immediate skip. To submit vote.]

SB7 - Triggers automatic recount when votes cast in an election precinct exceed the number of registered voters in that precinct

HB6 - Voter assistance forms require name, address, etc. if voting by mail or curbside

HB6 - Must maintain logs of spoiled ballots, includes specific language for serial numbering ballots in electronic voting

HB6 - Watchers may observe sealing and transfer of a memory card, flash drive, hard drive, data storage device, or another medium.

Transparency - SB7

Timely and affordable access to election records is the legislature’s intent and happens in some jurisdictions, but in too many others (in our experience), these rules are ignored.

SB7 - Equipment must-have software that tracks all input and activity 

SB7 - Paper audit trail required, (c) makes the paper ballots the official record of vote (d) funding mechanisms for same

SB7 - A test conducted under this section must also require the general custodian of election records to demonstrate, using a representative sample of voting system equipment, that the source code of the equipment has not been altered.

SB7 - Electronic copies of BBM applications must be fully captured and presented to the ballot board [Note: essential item for conducting a review of the election]

Fraud Prevention & Enforcement - HB6

As stated in the Summary, HB6 focuses largely on fraud, not election administration. Unfortunately, 2020 showed that the election code in Texas is like Swiss cheese. A bad actor serving as an election administrator (like Chris Hollins in Harris County) can change how elections are run to alter outcomes. While going after fraud is good, it’s arguably more important to shield from abuse of election administration now, and SB7 accomplishes this task.

SB7 - Broadens prosecutable offenses under Sec 232.006.

SB7 - Creates civil penalties for election fraud [Note: it would be nice to see funds directed to election administration or fraud investigations]

HB6 - Requires a statement of no pressure from assistance

HB6 - Prohibits payments or favors for harvesting 

HB6 - Provides for further assistance disclosures under Sec 86.010

HB6 - Compensation for assisting a voter is prohibited

HB6 - An election judge commits an offense if the judge knowingly provides a voter with a form for an affidavit required by Section 63.001 if the form contains false information entered thereon by the judge.

HB6 - Defines and assigns penalties for vote harvesting under Sec 276.012